August 31, 1978

General Accounting Office—Authority to Obtain

Information in Possession of Executive Branch—

Constitutional Law—President—Confidential

Communications— Appointments

1 am responding to your deputy’s memorandum of July 27, 1978, asking for 

our advice with respect to two requests for information, each dated July 27,

1978, received from an official in the General Accounting Office (GAO). One, 

addressed to your deputy, relates to appointments to the United States Metric 

Board; the other, addressed to the Chairman of the Council of Economic 

Advisers (CEA), relates to data and memoranda connected with last winter’s 

coal strike. We note that the requests were not signed by the Comptroller 

General but by a subordinate GAO official.

We conclude that the Comptroller General lacks authority to obtain the 

information sought.

I.

The request addressed to the Chairman of the CEA states that it is made in 

connection with an evaluation of the Administration’s estimate of unemployment due to last winter’s coal strike, which evaluation is being conducted by 

the GAO at the request of the Subcommittee on Energy and Power of the House 

Committee on Interstate and Foreign Commerce. The GAO asks specifically 

for the following data:

A description of the computer model developed by CEA to measure 

the unemployment impact of the coal strike including (1) assumptions 

used, (2) variables used, and (3) any limitations of the model.

Memoranda from CEA to the White House and/or DOE concerning 

the computer model output on unemployment estimates and any 

comments, suggestions, or recommendations by CEA as to which 

estimate to use for policy decisions.

78-96 MEMORANDUM OPINION FOR THE COUNSEL

TO THE PRESIDENT

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The request thus has three elements: A computer model, memoranda to the 

White House, and memoranda from CEA to the Department of Energy. We 

have been informed by the CEA that the computer model was developed for the 

following purposes: Advice to the President and preparation of an affidavit by 

the Chairman of the CEA to be used in connection with the Taft-Hartley 

proceedings during last winter’s coal strike. We also have been advised that the 

memoranda from CEA to the White House and from CEA to the Secretary of 

Energy also dealt with the preparation of the computer model and with advice 

to the President.

Our analysis proceeds from what we believe are now well-accepted basic 

premises. First, the Comptroller General is an officer of the Legislative branch. 

He has long been so viewed by Congress and by the Executive branch. See,

e.g., Corwin, Tenure o f Office and the Rem oval Power, 27 Colum. L. Rev. 

354, 396 (1927); Willoughby, The Legal Status and Functions o f the General

Accounting Office, 12-16 (1927). See also Reorganization Act of 1949, Ch. 

226., 63 Stat. 205; Reorganization Act of 1945, Ch. 582., 59 Stat. 616. His 

functions derive from and must be based upon the performance of appropriate 

congressional functions. Second, confidential Executive branch communications are presumptively privileged. See, United States v. Nixon, 418 U.S. 683

(1974); Nixon v. G .S .A ., 433 U.S. 425 (1977). We think it clear that this 

privilege, in order to be meaningful, must extend beyond the President 

personally to those who serve under and advise him. Thus, confidential 

communications between close Presidential advisers also fall within the 

“ presumptive privilege” identified by the Supreme Court. See, Nixon, supra,

at 682 (“ A President'and those who assist him must be free to explore 

alternatives in the process of shaping policies and making decisions . . . .” ); 

Nixon v. Adm inistrator, 433 U.S. 446, n. 10 (acknowledging the “ legitimate 

governmental interest in the confidentiality of communications between high 

government officials, e.g ., those who advise the President” ); Nixon v. 

Sampson, 389 F. Supp. 107, 150 n. 112 (D.D.C. 1975).

This conclusion is based on the same practical considerations that led the 

Supreme Court in G ravel v. United States, 408 U.S. 606, 617 (1972), to 

conclude that a Senator’s legislative side is entitled to the protections afforded 

by the Speech and Debate Clause.

Third, it must also be acknowledged that, unlike thfe privilege governing 

sensitive military, diplomatic, and foreign affairs matters, the presumptive 

privilege for confidential communications is not absolute. Congress has 

constitutional functions which it must carry out, and where collisions occur 

between its exercise of those functions and the Executive branch’s need to 

preserve confidentiality, a careful weighing of the respective interests must be 

undertaken. Nixon v. G .S .A ., supra; U nited States v. A.T. & T. C o., 567 

F. (2d) 121 (D.C. Cir. 1977), Senate Select Committee on Presidential

Campaign Activities v. Nixon, 498 F. (2d) 725 (D.C. Cir. 1974). As stated in 

the most recent decision by the D.C. Circuit Court of Appeals, where genuine 

and substantial competing interests are raised there is “ an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation

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of the needs of the conflicting branches in the particular fact situation.” United

States v. A.T. & T. C o., 567 F. (2d) at 127.

With these basic considerations in mind the Comptroller General’s subordinate’s request can be analyzed. First, it would appear that the three sorts of 

documents requested fall within the presumptive constitutional privilege and, 

therefore, a decision not to disclose the requested documents might be properly 

based on the determination that disclosure here would interfere with necessary 

relationships of confidentiality. For the reasons stated above, we think that such ' 

a decision can extend not only to the direct communications between the 

Chairman of CEA and the President but also to the communications between 

the Chairman and the Secretary of Energy and to the computer workup done in 

order to assist the Chairman in providing advice to the President.

Before finally arriving at that conclusion, however, we think attention should 

be given to the Comptroller General’s subordinate’s reasons for seeking the 

material and the authority upon which that request is based.

In response to an inquiry from your deputy, the General Counsel of the 

General Accounting Office stated in a letter dated August 11, 1978, that GAO’s 

“ right to access to the records” in question stems from 31 U.S.C. § 54 (1976). 

This statute, which is GAO’s basic provision with respect to its authority to 

seek documents, derives from § 313 of the Budget and Accounting Act of 

1921, Ch. 18, 42 Stat. 26, and reads as follows:

§ 313. All departments and establishments shall furnish to the 

Comptroller General such information regarding the powers, duties, 

activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of 

them; and the Comptroller General, or any of his assistants or 

employees, when duly authorized by him, shall, for the purpose of 

securing such information, have access to and the right to examine any 

books, documents, papers, or records of any such department or 

establishment. The authority contained in this section shall not be 

applicable to expenditures made under the provisions of section 291 

of the Revised Statutes [31 U.S.C. § 107 (1976)].

As a matter of normal statutory construction we doubt whether this provision 

provides a foundation for the request made in this instance. By its terms, § 313 

directs “ all departments and establishments” 1 to comply with requests from the 

Comptroller General for information concerning the “ powers, duties, activities, organization, financial transactions and methods of business of the 

respective offices.” Because the information in question here plainly does not 

relate to the powers, duties, organization, financial transactions and methods of 

business of the CEA, this provision can only apply if the term “ activities” is 

given its very broadest meaning.

'In view of the broad definition of the term “ departments and establishm ents” in § 2 o f the 

Budget and Accounting Act (31 U .S.C . § 2 (1976)), we assume arguendo that the term includes the 

Executive Office of the President, in which the CEA is located, and the White House Office.

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The very breadth of that term suggests the application of the ajusdem generis

rule of statutory construction to ascertain its import. Since the other terms of the 

section refer to organizational and fiscal matters, we can properly regard the 

work “ activities” as relating to activities of that nature. That view is supported 

by the fact that § 313 was enacted at a time when the Comptroller General’s 

functions were limited to those areas. The information sought here does not 

relate to fiscal or organizational matters; we therefore question whether the 

' request can be based directly on § 313.

Although the most recent letter from the General Counsel of GAO does not 

explicitly so state, the Comptroller General himself has heretofore taken the 

position that § 313 does not constitute an independent source of investigatory 

power. Instead, that section has been cited as an aid in carrying out powers and 

responsibilities elsewhere conferred on the Comptroller General. In other 

words, if some statute directs the Comptroller General to investigate, review or 

evaluate, § 313 has the function of enabling him to obtain information from the 

Executive branch. In the words of Comptroller General Staats, § 313 is of a 

“ supportive” nature.2

While we have not been directed by the General Counsel to any other 

applicable provision, § 204(a) of the Legislative Reorganization Act of 1970, 

as amended, is the only statute of which we are aware that could serve as a basis 

for this request. That section directs the Comptroller General “ to review and 

evaluate the results of government programs and activities carried on under 

existing law s.” Pub. L. 93-344, 88 Stat. 326 (1974). When the section was 

originally enacted in 1970 it was limited to fiscal and budgetary matters. Pub. 

L. 91-510, 84 Stat. 1140 (1970), H. Rept. 91-1215, p. 80. While certain 

amendments in 1974 made only minor changes in the wording of § 204(a), the 

relevant conference report discloses a congressional purpose to expand its 

scope so as to enable Congress to utilize the facilities of GAO in connection 

with its legislative oversight functions.3

2Memorandum submitted by the Com ptroller General in Defense Production Act Amendments, 

Hearings before the Subcommittee on Production and Stabilization of the Committee on Banking, 

Housing and Urban Affairs, U .S. Senate, 92d Cong., 2d sess., on S. 669 and 1901, pp. 51, 53. See

also in this connection M organ, The General Accounting Office, 51 North Carolina Law Review 

1279, 1352-1353 (1973).

3The pertinent portion of the Conference Report on the Congressional Budget Act of 1974, S. 

Rept. 93-924, p. 72, reads:

SECTION 702. REVIEW AND EVALUATION BY COM PTROLLER GENERAL.

The Senate amendment expanded the review and evaluation functions and duties of 

the Comptroller G eneral, including assistance to com m ittees and Members.

The conference substitute is a revision o f the Senate provision. It amends section 

204 of the 1970 Legislative Reorganization Act to expand GAO assistance to 

Congress. As am ended, section 204(a) provides that the Com ptroller Genera] shall 

evaluate Government programs at his own initiative, when ordered by either House, or 

at the request of a congressional committee. Section 204(b) provides that upon request, 

the Comptroller General shall assist com m ittees in developing statements of legislative 

objectives and methods for assessing program performance. The managers consider 

oversight of executive performance to be among the principal functions of congressional committees and they recognize that the usefulness o f program evaluation can be

(Continued)

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The request for information concerning the computer model may come 

within the scope of § 204(a) if it can fairly be said to relate to some legislative 

oversight of the manner in which programs and activities of the CEA are carried 

on under existing law. The only substantive piece of legislation involved in the 

Chairman’s activities here was the preparation of an affidavit under the 

Taft-Hartley Act. It should first be noted that this activity is not among the 

statutory functions imposed on CEA under § 4(c) of the Employment Act of 

1946. Ch. 33, 60 Stat. 23, 15 U.S.C. § 1023(c) (1976). To the contrary, when 

the Chairman of CEA prepared and executed the affidavit, he was not 

administering a program subject to legislative oversight but was acting in his 

capacity as an adviser and assistant to the President.

Assuming arguendo that the preparation and execution of a Taft-Hartley 

affidavit by the Chairman of the CEA might come within the scope of § 204(a) 

in connection with the exercise of legislative oversight of the manner in which 

the Taft-Hartley Act is administered, the fact is that it appears from the request 

that the House Subcommittee on Energy and Power is not engaged in legislative 

oversight with respect to Taft-Hartley and does not appear to have jurisdiction 

over that program or activity. Hence, § 204(a) would not appear to constitute an 

authority for the review and evaluation by the Comptroller General of the 

manner in which the Taft-Hartley Act is administered.

We presume, although it is not entirely clear, that it might be claimed that 

this investigation is addressed to the more general question whether there is in 

existence adequate legislation to avert energy shortage crises in the future.4 If 

this is GAO’s interest, it is not clear to us how the information requested should 

prove relevant to that inquiry. We believe that in order to make the kind of 

“ accommodation” suggested by the District of Columbia Circuit Court of 

Appeals, you would want to know a good deal more about the reasons why this 

particular information is being requested. Ordinarily, the examination of a 

single historical incident would not serve as a very useful aid in evaluating the 

need for legislation. Moreover, to the extent that the examination of a particular 

episode is deemed important, we would think that the relevant factual details 

could be gathered without requiring the disclosure of this kind of confidential 

information.

In summary, it appears to us that there is a substantial basis upon which a 

decision might be made not to share this information with the Comptroller 

General’s staff. From the information given us by GAO we cannot readily 

ascertain the authority underlying the request. Nor can we assess the relevance 

or importance of the information sought. We suspect, however, that a more 

detailed factual inquiry would likely demonstrate that the interest in preserving

(Continued)

enhanced by the clear expression of legislative objectives and the employment of 

modem analytic methods. The managers further believe that statements of intent can 

be most appropriately developed by the committee of jurisdiction. Members must be 

provided upon request with all related information after its release by the committee for 

which it was compiled.

“There is a suggestion to this effect in the letter to Chairman Schultze dated July 27. 1978.

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the confidentiality o f Executive branch communications would exceed the 

interest GAO might identify in support of its request.

II.

The second request, addressed to your deputy, asks for detailed information 

as to whether recent Presidential appointments to the U.S. Metric Board 

complied with the specific qualification requirements of 15 U.S.C. § 205d 

(1976). This request, also signed by a subordinate GAO official, was made at 

the request of an individual member of Congress.

It is our view that compliance with this request is not required. Since the 

information sought does not involve fiscal matters, the Comptroller General’s 

authority must be based on § 204(a). See supra. A request for information 

under that section, however, presupposes action by either House of Congress or 

by a committee having jurisdiction over the program or activity under review or 

evaluation; a request of a single member does not authorize the Comptroller 

General to proceed.5

Beyond that, the request for information may well be outside the jurisdiction 

of the Comptroller General as an arm of Congress. Under the Constitution, 

Article II, § 2, the power of appointment of the members of the Board is vested 

in the President and the Senate, and not in Congress as a whole. Hence, it is the 

responsibility of the President and Senate to determine whether there has been 

compliance with the qualification requirements of. 15 U.S.C. § 205(d) (1976). 

As James Madison said during the First Session of the First Congress during the 

Great Debate concerning the removal power of the President:

The Legislature creates the Office, defines the powers, limits its 

duration and annexes a compensation. This done the Legislative 

power ceases.6

Moreover, the appointment of officers of the United States by the President 

by and with the advice of the Senate does not constitute a Government program 

or activity carried out under existing law as required by § 204(a).

Finally, it should be noted that there is considerable question whether 

Congress has the power under the Appointments Clause significantly to restrict 

the President’s discretion in fulfilling his duty to nominate officers of the 

United States. See, Buckley v. Valeo, 424 U.S. 1 (1976). The process whereby 

the President is restricted in naming members to the Board would raise serious 

questions if the President were therefore deprived of discretion in performing 

his nominating function. 40 Op. A. G. 551 (1947); 13 Op. A. G. 516, 525

’Section 204(a), it is true, enables the Com ptroller General to proceed on his own initiative. 

However, it cannot be anticipated that the Com ptroller General will take that step after having 

received the request of a single Congressm an, since such a step could have the effect of 

jeopardizing his “ role as an independent nonpolitical agency of the legislative branch.” See also

M ansfield, The Com ptroller General, 258; M organ, The General Accounting Office, supra, at 

1299-1300.

6A N N A LSo f C o n g r e s s , First Congress, First Session, Col. 582.

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(1871); c f , M yers v. United States, 272 U.S. 52, 121 (1926). We would have 

an even greater concern if it were concluded that those who submit names of 

qualified applicants could not be assured that the names remain confidential. 

The President might well conclude that in order adequately to fulfill his 

nominating responsibility he must have candid and straightforward advice from 

those who submit the names. If the President were so to conclude we think his 

decision not to disclose would be justified both on the ground that confidentiality 

is essential to the Appointments Clause process and on a more generalized 

presumptive constitutional privilege.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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